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Case of Three X’s

How I tried to protect copyrights for my song, which was used by an American rapper

Photo: Matias J. Ocner / TNS via Getty Images

Jacey Onfroy, better known as XXXTentacion, was killed this week. He was one of the most famous SoundCloud rappers, his name was constantly featured in the top Billboard charts, details of his ambiguous biography were constantly written in the media, while the number of his fans exceeded millions. It was not easy for him to write about during his lifetime, and now it’s quite like going to the minefield.

I was not at all his fan, because I was preparing a lawsuit against him for taking my music. At once I will note that I sincerely would like to resolve this conflict with the living Jacei, but life has its own plans, so I can only forgive him and share my story.

The essence of the conflict

My name is Nick. I have been writing mostly instrumental music for more than a decade. At the age of 16 I recorded 14 songs that were released as a demo in December 2008 under the name Aesthesys, which later developed into a full-fledged group. One such song was “Dreams Are Only As Long As The Last.”

The demo version had a lot of recording artifacts, because I was not able to record sound properly and reduce it, so three years later I re-recorded this track for the release of “Camera Obscura”, because the experience was a little added.

Now back to Jacey. In early 2015, he published in his SoundCloud’e track “Never”:

A curious similarity, is not it?

What does this mean in terms of legal? I published my old works under the Creative Commons BY-NC-ND 3.0 license . In short, this means that I allowed people to download and share my music for free under the three conditions.

  • Indicate authorship;
  • Do not create derivative works without my permission;
  • No commercial use.

In 2016, I came across “Never” in SoundCloud. At that time it was already a license violation, since Aesthesys was not mentioned anywhere, and the entire track is a derivative of my phonogram (that is, from the three conditions, two were already violated). But since it was SoundCloud rapper with a small number of listeners and without monetization, I decided not to tin and just teased in the comments.

But then on XXXTentacion began to pay attention. A lot of attention. And in early 2017 he signed a contract with the distro Empire – a company that is known for its large collections through streaming services and YouTube.

And here I am, you ask? As it turned out, XXXTentacion decided to monetize its old tracks, including “Never”, and it turned out for him only because I did not start monetizing my music first.

For a long time I was ashamed of early creativity because of its poor quality recording. Old tracks were not laid out on SoundCloud, streaming platforms or other services, but listeners continued to treat them with warmth. Some of them were uploaded to YouTube by different people and collected several hundred thousand views. Last July, I decided that it was time to take early creativity and be more open in this regard, so I decided to fill these tracks with all the platforms that I could only.

But something was not right. The service that I used to download tracks with a demo (called “I”, as some platforms do not allow downloading releases called “Demo”), could not upload digital snapshots to the YouTube algorithm library for monetization. Because someone has already done it. I was a bit taken aback, but then I decided to fill this track with my own channel. And I saw this.

Bad Vibes Forever is the name of Jacey’s second album, which he used as an alternative alias

“What kind of chuhna?” – was my first thought. Comrade insolent enough that not only took my music without permission and instructions from the author, so also decided to monetize this case?

As it turned out, he monetized not only his own version, but my original, for even the YouTube algorithm saw that it was the same track after deducting the voice. By the end of March 2018, the amount of video views containing “Never” exceeded the mark of 20 million.

What I have experienced can be called a cocktail of sadness, shock and fury. So began my little crusade for justice.

The first step was an attempt to calm down. The sense of injustice that prevailed at the time was so strong that any attempts to convince himself to cool his mind, weigh all the options and only then act – were given with great difficulty.

But I still started by writing directly to his accounts, hoping that he will receive my message and realizes just how ugly a situation he created. Of course, there was no answer.

The next plan was very simple – I had to find a lawyer in the US, prepare the case and settle the conflict pre-trial with representatives of XXXTentacion and Empire, so that they stopped violating my license, returned money received from monetizing the track, and also compensated for moral damage.

A friend of mine brought me to a lawyer from Florida, I gave him the details of the case and we discussed this parsley for a while. At first I was even ready for a compromise in the form of a license for further use, but then I learned about the artist’s conflict with the Canadian rapper Drake, because of which I did not want to compromise on the principle. In Onfroid, there was no problem in simply taking three and a half minutes entirely from my composition, but he accused Drake that the latter had stolen his “flow” (the rhythm of the text).

The same story spurred the creation of an alternative crazy plan, according to which I would try to contact Drake to suggest that he use the same composition (but in a more decent and suitable form). To rule XXXTentacion and force him to start publicly blaming Drake for plagiarism, and maybe even start a trial where I would appear at one of the meetings with a sudden: “Surprise!”, Would reveal all the inside story and achieve justice. A crazy plan, as I said, so I did not resort to it.

Legal preparation

My first lawyer dragged for months, so I asked another friend to tell me if he knows intelligent lawyers who are capable of doing such things. So I met a new lawyer who already knew what and how to do.

He agreed in general with my first plan to contact representatives of XXXTentacion and Empire directly, made Cease & Desist letters (who watched “Better Call Saul” can remember an amusing moment with writing such a letter as the protagonist on toilet paper), and in January of this year we they were sent. Representatives of XXXTentacion remained silent, and the comrades from Empire decided to “pretend to be a hose” and say that they are not at all in business. The only option for the development of events was therefore a court in the United States.

But there was a nuance. To begin the process, it was necessary to collect at least $ 15,000, which is not enough in such a short time. Since Aesthesys and I were preparing to release the album in April after a difficult and long production, I focused primarily on new music, and not on litigation.

As soon as the album came out , I started to implement a new crazy plan. It consisted in creating a crowding campaign on Indiegogo with a video that would describe my situation, in the hope that it would attract a little attention and possibly even cover part of the legal costs.

Since few people like video with camera-speaking guys, I decided that it’s necessary to sculpt the video in a really interesting manner – with a short and clear message, an unusual graphic style and a balanced script in terms of rhythm. I quickly blended the script, and for the graphic part I hired a talented Mexican artist Bruno Cortes so that he could sculpt the characters’ design and basic animation, on the basis of which I would have already blinded the video itself. He sent me completed animations on June 15th.

These kids could help me sue XXXTentacion
These kids could help me sue XXXTentacion

Current results

And then someone shot XXXTentacion, depriving him of his life, and me – the opportunity to bring this story to the end. I will not lie, XXXTentacion was for me not the most beloved person, but I never wished him such a fate, so what happened made me very sad. Yes, the character was ambiguous, I had personal accounts to him, but this does not detract from tragedy – the dude was not allowed to live his life. I can not imagine what his mother is like now.

The last few days, I rethought my attitude to Jacey and the pain he caused me. Of course, there are a lot of people that he touched much more painfully, but there are millions of listeners to whom he brought something positive. I may not appreciate his work, but he clearly liked what I do (otherwise he would hardly use my music for his track).

The initial rage subsided as I tried to apply empathy as much as possible. I’m interested in what would have happened, write years ago asking him to use music for his track. Most likely, I would suggest writing something from scratch, so that the music and the message of its text would be more suited to each other. Maybe we could make friends. Maybe everything would be limited to such a collaboration. You can imagine many different scenarios, each of which is better than what happened in the end.

In terms of my quest this is a stalemate. At first I was thinking of chasing the distributor’s courts, but I do not see the ultimate meaning in this. There are also no idiots sitting there, and provisions for guaranteeing the absence of third-party claims and liability in case of their appearance on the artist’s side are present even in the most mediocre license agreement – I hardly shake anything for the previous use from them. Only his family remains of the proper defendants, and ordinary decency does not allow me to obscure them in any form. They have already experienced a huge loss, so I can only express my condolences and tell my story.

The track continues to monetize, so I will have something else to do.

Someone will say that I should have told this story before, and now I’m using the death of XXXTentacion. Yes, this is so – I use this occasion to forgive the artist, who was clearly tormented by his inner demons. To finish is not the most funniest chapter in my life, although the gestalt from this is unlikely to close. But this is my way to say goodbye to a man who at some point in his life has hooked up my creativity, as well as leave this negative behind.

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